Microsoft Sues TomTom for Patent Infringement, Implies TomTom's Implementation of Linux Kernel is Neither Free as in Freedom Nor as in Beer
Microsoft filed a complaint against TomTom yesterday alleging eight counts of patent infringement. TomTom makes in-car navigation devices. The software powering the devices is built upon Linux.
Given that this is the first instance of Microsoft directly asserting that an implementation of the Linux kernel infringes upon Microsoft's intellectual property, the geeks with the long beards, err, open-source software advocates, are concerned. If successful, Microsoft may create a very slippery slope for Linux as well as the myriad of devices it powers.
According to Ars Technica, "[t]he lawsuit, which was reported [yesterday] at Todd Bishop's Microsoft blog, is thought to be the first time that Microsoft has directly targeted Linux with patent litigation." And, in an interview with Todd Bishop, posted today, Horacio Gutierrez, Microsoft's corporate vice president and deputy general counsel for intellectual property, confirmed it.
Gutierrez states that "three of the eight patents in this dispute read on the Linux kernel as implemented by TomTom. The other five relate to car navigation proprietary software used by TomTom." When questioned as to what he meant by "reads on the linux kernel," Gutierrez responded that "the patents cover the implementation of the Linux kernel done by TomTom in their products." Id.
"Reads on" is actually a legal term of art. In very general terms, determination of patent infringement has two steps. First, the patent claim at issue must be construed to determine its scope and meaning. Second, one determines if the accused device or process infringes the properly construed claim. Interpreting the meaning and scope of a claim is generally a matter of law. The question of infringement, specifically literal infringement is generally a question of fact, and requires the factfinder to decide whether the patent claim, as construed, reads on the accused object or process.
As Ars Technica explains, at least two of the patents at issue involve the FAT32 filesystem. FAT is an acronym that stands for File Allocation Table. The FAT filesystem was first developed around thirty years ago for use with MS-DOS and later Microsoft Windows. Although FAT has largely been discarded in favor of the NTFS filesystem, removable devices such as Windows-formatted iPods are still formatted using FAT32. FAT32 is also one of the only, if not the only filesystem with native read/write support in most of the major computing platforms, including Microsoft Windows, Linux, and Mac OS X.
Last year, Microsoft asserted that Linux infringes on over 200 of its patents. From what I can tell, most businesses that rely on Linux either entered into licensing agreements with Microsoft to protect themselves from potential liability (such as TomTom's competitor Garmin), or just entirely dismissed the assertion, assuming it was just FUD aimed at decreasing Linux's share of the server market.
So, what's the point of this litigation? Why attack Linux? Does it actually pose a threat to Microsoft's dominance in most things computer related?
Microsoft should be able to protect its intellectual property; however, FAT32 is essentially outdated technology, so why waste the money suing over it?
According to a blog post on CNET, Microsoft is adding broader support for FAT32 formatted hard drives to Windows 7. Could the push for better backwards compatibility with FAT32 in Windows 7 have anything to do with the case against TomTom? I suppose it's possible (though somewhat unlikely). And, even if it is the driving motivation, it still doesn't necessarily mean that Microsoft has finally decided to wipe Linux from the face of the planet—it may just mean that Microsoft wants to get paid for what it owns. In fact, Gutierrez was fairly adamant in his assertion that the suit against TomTom is not an attack on open-source software, but rather the result of TomTom's absolute unwillingness to come to an agreement regarding licensing of Microsoft's intellectual property—including the five patent claims relating to purely proprietary technology. See Tom Bishop's Blog.
(You can find the complaint here (warning: pdf)).
